Federal Communications CommissionFCC 00-63
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of)
)
The 4.9 GHz Band Transferred from)WT Docket No. 00-32
Federal Government Use)
NOTICE OF PROPOSED RULEMAKING
Adopted: February 23, 2000Released: February 29, 2000
Comment Date: April 26, 2000
Reply Comment Date: May 17, 2000
By the Commission:
TABLE OF CONTENTS
Paragraph
I. INTRODUCTION...... 1
II. BACKGROUND...... 3
III. DISCUSSION...... 13
A.Re-allocation of the Band 4940-4990 MHz...... 13
B.Public Safety...... 25
C.Application, Licensing, and Processing Rules...... 27
1. Regulatory Status...... 31
2. Eligibility; Spectrum Aggregation...... 34
3. Foreign Ownership Restrictions...... 38
4. Geographic Areas and Spectrum Blocks...... 41
5. License Term; Renewal Expectancy...... 48
6. Partitioning and Disaggregation of Licenses...... 51
7. Performance Requirements...... 58
8. Public Notice...... 63
D.Operating Rules...... 65
1. General Common Carrier Obligations; Forbearance...... 65
2. Equal Employment Opportunity...... 70
E.Technical Rules...... 72
1. In-Band Interference Control...... 73
2. U.S. Navy Cooperative Engagement Capability System...... 84
F.Competitive Bidding Procedures...... 90
1. Statutory Requirements...... 92
2. Incorporation by Reference of Part 1 Standardized Auction Rules...... 97
3. Provisions for Designated Entities...... 98
a. Background...... 98
b. Small Business Definitions...... 99
IV. PROCEDURAL MATTERS...... 104
A.Initial Regulatory Flexibility Analysis...... 104
B.Paperwork Reduction Analysis...... 106
C.Ex Parte Presentations...... 108
D.Pleading Dates...... 109
E.Further Information...... 112
V. ORDERING CLAUSES...... 113
Appendix A: Initial Regulatory Flexibility Analysis
Appendix B: Proposed Rules
Appendix C: CEC Operating Area Descriptions
Appendix D: CEC Impacted EAs
I. INTRODUCTION
1.In this Notice of Proposed Rulemaking (Notice), we propose to allocate and establish licensing and service rules for the band 4940-4990 MHz (4.9 GHz band) that has recently been transferred from Federal Government to private sector use as substitute spectrum for the band 4635-4685 MHz reclaimed for Federal Government use. We believe this band can support a variety of new and advanced wireless applications. We propose to allocate the 4.9 GHz band for fixed and mobile services, except aeronautical mobile service, on a primary basis and we seek comment on the geographic area and spectrum blocks that should be used to license this spectrum. We anticipate that this proposed action will benefit the public by permitting and encouraging the introduction of new services and the enhancement of existing services.
2.In addition, we propose to license the 4.9 GHz band under Part 27 of the Commission's Rules,[1] except to the extent that we propose to modify those rules in this Notice to reflect the particular characteristics of this spectrum and the services that will be permitted to operate in this band.[2] We also propose that initial licenses for the 4.9 GHz band be acquired through competitive bidding under Part 1 of the Commission's Rules.[3] Furthermore, in a few instances, we propose to codify and conform certain rules for the 2.3 GHz band to provide for consistent regulation of Part 27 services.[4] Finally, we grant in part a Petition for Rulemaking filed by Global Frontiers, Inc. (Global) to revise, among other requests, the Commission’s rules relating to this band.
II. BACKGROUND
3.The Omnibus Budget Reconciliation Act of 1993[5] required that the Secretary of Commerce identify at least 200 megahertz of spectrum then allocated for use by Federal Government agencies to be transferred to private sector use. All of the 200 megahertz of spectrum recommended for reallocation was required to be located below 5 gigahertz, with at least 100 megahertz of this spectrum below 3 gigahertz.[6]
4.OBRA also required the Secretary of Commerce to issue within six months of enactment a Preliminary Report identifying bands of frequencies for potential reallocation and, furthermore, to issue within 18 months a Final Report recommending the spectrum for reallocation.[7] In its report making a preliminary identification of spectrum, the Department of Commerce was required to identify at least 50 megahertz of spectrum for immediate reallocation,[8] to reserve a significant portion of the 200 megahertz of spectrum until after a 10-year period,[9] and to make the remaining spectrum available over the intervening 10 years.[10]
5.In accordance with the requirements of OBRA, on February 10, 1994, the Department of Commerce released its Preliminary Report.[11] The Preliminary Report identified 10 bands for reallocation, with three of these bands identified for immediate reallocation.[12] One of the three frequency bands identified in the Preliminary Report for immediate reallocation and private sector use was the band 4660-4685 MHz.[13] In February 1995, the Department of Commerce released its Final Report on spectrum for reallocation. In pertinent part, the Final Report stated that for the band 4660-4685 MHz reallocation had already been completed. The Final Report also identified the band 4635-4660 MHz, the band adjacent to the band 4660-4685 MHz, for transfer from Federal Government use to private sector use as of January 1, 1997.[14]
6.OBRA also required that the Commission allocate and propose regulations for the assignment of the immediately available 50 megahertz of spectrum no later than 18 months after enactment.[15] Thus, on February 7, 1995, the Commission adopted the GWCS First Report and Order and Second Notice of Proposed Rulemaking.[16] The Commission, among other decisions there, allocated the band 4660-4685 MHz on a primary basis to fixed and mobile services and proposed to designate this band for a new service entitled the General Wireless Communications Service (GWCS).
7.On August 2, 1995, the Commission released the GWCS Second Report and Order that established GWCS and adopted Part 26 of its rules setting out licensing and operating rules for the service in the band 4660-4685 MHz.[17] The Commission found that GWCS should accommodate a wide variety of potential fixed and mobile service uses, such as voice, video and data transmission, private microwave, broadcast auxiliary, and ground-to-air voice and video. The Commission also found that GWCS should facilitate the availability of frequencies for new technologies and services, encourage research and investment to invent, develop, and market new technologies, and spur their deployment to serve customers.[18]
8.On December 17, 1997, the Wireless Telecommunications Bureau announced that the auction for licenses in the band 4660-4685 MHz would commence on May 27, 1998.[19] In April 1998, however, the Bureau postponed the commencement of the auction[20] due to a demonstrated absence of demand for licenses in the band 4660-4685 MHz.[21] This lack of interest may have been due in part to the relatively small size of the spectrum block (i.e., 25 megahertz) and to potential interference problems in the band.[22] The U.S. Navy uses the spectrum immediately above the 4685 MHz band, as well as the spectrum immediately below the 4635 MHz band, to operate its Cooperative Engagement Capability (CEC) system.[23] As a result, as detailed in a General Accounting Office Report to Congress, the Navy believed that commercial use of the band 4635-4685 MHz could adversely affect the CEC system.[24]
9.On March 30, 1999, pursuant to Section 6001(a)(3) of OBRA,[25] the Department of Commerce notified the Commission that the Federal Government was reclaiming the band 4635-4685 MHz and identifying, as substitute spectrum, the 4.9 GHz band.[26] As required by OBRA, the Department of Commerce submitted a Statement of Reasons in support of its decision. Among other justifications, the Statement of Reasons provides that: (1) the Department of Defense has concluded that the loss of the band 4635-4685 MHz would seriously jeopardize the national security interests of the United States by adversely impacting the operational capabilities of the Navy’s CEC program; (2) reclaiming this spectrum and substituting the 4.9 GHz band will avert this operational impact to the Navy and preserve the resources already expended on the three billion dollar CEC program; (3) substitution of the 4.9 GHz spectrum will not disrupt nor displace any private sector entities; and (4) given that the band 4635-4685 MHz has not been auctioned and that no licenses for this band have been issued, there is no cost to the private sector associated with this decision. The Navy currently plans to use the band 4635-4685 MHz and adjacent bands for its CEC system.[27]
10.Partially in response to the Department of Commerce’s decision to reclaim the band 4635-4685 MHz, the Offices of Engineering and Technology and Managing Director recently released a Memorandum Opinion and Order revising Part 2 of the Commission’s Rules making non-substantive revisions to the Table of Frequency Allocations.[28] One of the changes made by this order was to return the band 4660-4685 MHz to the status quo ante, i.e., to delete the allocation to non-Federal Government fixed and mobile services, while retaining the prior allocation on a primary basis to fixed-satellite service.[29] Because the band 4635-4660 MHz transferred from Federal Government to non-Federal Government use, had never been reallocated, the order did not need to make any changes to the allocations for that band.
11.On November 24, 1999, Global filed a Petition for Rulemaking requesting that the Commission: (1) designate the 4.9 GHz band for GWCS in lieu of the reclaimed band 4660-4685 MHz; (2) make the service more attractive to applicants that require broadband capability in order to serve the public; (3) speed the process of licensing applicants that are not mutually exclusive; and (4) allow mutually exclusive applicants to consult and negotiate solutions to their mutual exclusivity.[30] Global states that it is an Internet Service Provider (ISP) located in Portland, Oregon and is interested in offering its customers in the Portland area, and eventually customers in other areas, a simple, economical, and rapid means of downloading large files from the Internet. In order to achieve this objective, Global states that it has entered into an agreement with a French manufacturer to market and distribute in this country a terrestrial wireless transmission system that will permit consumers with a small horn-shaped antenna attached to their modems, pointed toward the ISP transmitter, to download files at speeds that are substantially in excess of those permitted by other competing technologies.[31] According to Global, the service, when authorized, will operate in the band 4940-4990 MHz utilizing a transmission bandwidth of 39 megahertz.
12.Global requests that the Commission make available for GWCS the entire 4.9 GHz band, that the band be broken down into five 10 megahertz wide blocks, and, apparently, that the band be licensed using Economic Areas (EAs).[32] Global also requests that the 15 megahertz aggregation limit contained in Section 26.101(a) be increased[33] and that GWCS licensees be able to partition their service territories to entities other than just rural telephone companies.[34] In addition, Global requests that the Commission clarify how applications are to be filed and that the Commission promptly process GWCS applications. Finally, Global requests that the Commission encourage the avoidance of mutual exclusivity through negotiated engineering solutions. We here grant Global’s Petition to the extent indicated below.
III. DISCUSSION
A.Re-allocation of the Band 4940-4990 MHz
13.Internationally, the band 4940-4990 MHz is part of the band 4800-4990 MHz, which is allocated to the fixed and mobile services on a co-primary, worldwide basis, except in the sub-band 4950-4990 MHz, where the allocation to the mobile service is restricted by international footnote S5.442 to the mobile, except aeronautical mobile, service.[35] The band 4800-4990 MHz is also allocated to the radio astronomy service on a secondary,[36] worldwide basis.[37] Furthermore, in making assignments to stations of other services to which the sub-band 4950-4990 MHz is allocated, international footnote S5.149 states, in pertinent part, that “administrations are urged to take all practicable steps to protect the radio astronomy service from harmful interference” and that “emissions from spaceborne or airborne stations can be particularly serious sources of interference to the radio astronomy service.”[38] Finally, the sub-band 4950-4990 MHz is allocated to the space research (passive) and earth exploration-satellite (passive) services on a secondary, worldwide basis.[39]
14.In the United States, the band 4940-4990 MHz (i.e., the 4.9 GHz band) is Federal Government transfer spectrum that became available for exclusive non-Federal Government use in March 1999. The purpose of this instant proceeding is to develop the guidelines for non-Federal Government use of this spectrum. Currently, the band 4940-4990 MHz is part of a much larger Federal Government band that extends from 4400 MHz to 4990 MHz. The band 4800-4990 MHz is allocated to the Federal Government fixed and mobile services on a co-primary basis.[40] In its Reallocation Letter, NTIA states that the Federal Government uses the band 4940-4990 MHz for such fixed services as conventional point-to-point microwave, tactical radio relay, and high power tropospheric scatter systems, and such mobile services as control of remote piloted vehicles, video and data telemetry links, target drone control links, and fleet defense systems.[41] In addition, the Federal Government uses the band for aerostat systems, tethered at an altitude of approximately 15,000 feet above mean sea level, along the U.S. southern borders.
15.The sub-band 4950-4990 MHz is also allocated to the Federal Government and non-Federal Government space research (passive) and earth exploration-satellite (passive) services on a secondary basis.[42] Radio astronomy observations may be made in the sub-band 4950-4990 MHz at certain Federal Government/non-Federal Government observatories that are listed in footnote US257. In addition, international footnote S5.149 has previously been added to both the Federal Government and non-Federal Government Tables. Thus, the only authorized non-Federal Government use of the band 4940-4990 MHz is currently passive.
16.In initially establishing GWCS in August 1995, the Commission concluded that authorizing a wide variety of fixed and mobile services bounded only by international allocations comported with the Commission's statutory authority and served the public interest by fostering the provision and mix of services most desired by the public.[43] In keeping with this conclusion, we propose to allocate the band 4940-4990 MHz to the non-Federal Government fixed and mobile services, except aeronautical mobile service, on a co-primary basis. This allocation will permit the provision of a broad range of fixed and mobile services, except aeronautical mobile service. In keeping with this broad allocation, we propose to permit licensees to utilize this spectrum for any service permitted within any of the allocation categories of fixed and mobile, except aeronautical mobile uses, subject to international requirements and coordination. Finally, since the band 4940-4990 MHz is being transferred as a non-Federal Government exclusive band, we also propose to delete the Federal Government fixed and mobile service allocations from the band 4940-4990 MHz.
17.We note that the sub-band 4950-4990 MHz, together with the adjacent band 4990-5000 MHz, is extremely useful in studying the brightness distributions of both galactic and extra-galactic objects such as ionized hydrogen clouds and supernova remnants. We also note that radio astronomy is particularly vulnerable to potential interference from other services because it is a passive service that involves the reception of exceptionally weak cosmic radio waves emanating from a great distance from the Earth. Therefore, consistent with international footnote S5.442, we proposed above to prohibit aeronautical mobile service use of the sub-band 4950-4990 MHz.[44] Moreover, we proposed above to prohibit aeronautical mobile service use of the adjacent sub-band 4940-4950 MHz in order to provide additional protection for adjacent band radio astronomy observations. These proposals are consistent with footnote US257 and the Department of Commerce's request that we protect radio astronomy operations.[45]
18.The National Science Foundation (NSF) has requested that we update the list of radio astronomy observatories identified in footnote US257 to accurately reflect radio astronomy use of the sub-band 4950-4990 MHz. The NSF states that the observatories currently observing in the sub-band 4950-4990 MHz are listed in footnote US311 and recommends that we update the Table of Frequency Allocations by adding the sub-band 4950-4990 MHz to footnote US311 and by deleting footnote US257. Accordingly, we propose to delete footnote US257 and to revise footnote US311 to read as follows:
US311 Radio astronomy observations may be made in the bands 1350-1400 MHz and4950-4990 MHz on an unprotected basis at certain radio astronomy observatories indicated below:
National Radio Astronomy Observatory, Socorro, New Mexico / Rectangle between latitudes 32°30'N and 35°30'N and between longitudes 106°00' W and 109°00'W.
National Radio Astronomy Obser-vatory, Green Bank, West Virginia / Rectangle between latitudes 37° 30'N and 39°15'N and between longitudes 78°30'W and 80°30'W.
National Radio Astronomy Observatory, Very Long Baseline Array Stations / 80 kilometers (50 mile) radius centered on:
Latitude (North) / Longitude (West)
Pie Town, NM / 34°18' / 108° 07'
Kitt Peak, AZ / 31°57' / 111°37'
Los Alamos, NM / 35°47' / 106°15'
Fort Davis, TX / 30°38' / 103°57'
North Liberty, IA / 41°46' / 91°34'
Brewster, WA / 48°08' / 119°41'
Owens Valley, CA / 37°14' / 118°17'
Saint Croix, VI / 17°46' / 64°35'
Mauna Kea, HI / 19°48' / 155°27'
Hancock, NH / 42°56' / 71°59'
Every practicable effort will be made to avoid the assignment of frequencies in the bands 1350-1400 MHz and4950-4990 MHzto stations in the fixed and mobile services which could interfere with radio astronomy observations within the geographic areas given above. In addition, every practicable effort will be made to avoid assignment of frequencies in these bands to stations in the aeronautical mobile service which operate outside of those geographic areas, but which may cause harmful interference to the listed observatories. Should such assignments result in harmful interference to these observatories, the situation will be remedied to the extent practicable.
We request comment on these proposals.
19.In summary, we propose that licensees in the 4.9 GHz band will be authorized to provide any fixed, land mobile, or maritime mobile service, but not aeronautical mobile service. In proposing this broad allocation, we seek to ensure that the spectrum is put to its best and most valued use and that the greatest benefit to the public is attained. We believe that a broad and general allocation is most likely to achieve this objective. Such an approach will allow flexible use of these bands so that licensees will be able to offer a wide range of services employing varying technologies. We therefore request comment on our proposal to allocate the band 4940-4990 MHz to the fixed and mobile services, except aeronautical mobile service, and to permit any fixed or non-aeronautical mobile service use in this spectrum, rather than specify this band for particular uses.[46]